U.S. v. Erwin

• Citation: 155 F.3d 818
• Decision Date: 17 September 1998
• Docket Number: No. 94-1766,94-1766
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James ERWIN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 818

155 F.3d 818

UNITED STATES of America, Plaintiff-Appellee, v. James ERWIN, Jr., Defendant-Appellant.

No. 94-1766.

United States Court of Appeals, Sixth Circuit.

Argued June 11, 1997.

Decided Sept. 17, 1998.

Kenneth M. Mogill (argued and briefed), Mogill, Posner & Cohen, Detroit, MI, for Appellant.

Christopher P. Yates (argued and briefed), Office of the U.S. Attorney, Detroit, MI, for Appellee.

Before: MARTIN, Chief Judge; MERRITT, KENNEDY, JONES, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, and COLE, Circuit Judges.

RYAN, J., delivered the opinion of the court, in which MERRITT, KENNEDY, NELSON, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, and DAUGHTREY, JJ., joined. MARTIN, C.J. (pp. 825-828), delivered a separate dissenting opinion, in which JONES, MOORE, and COLE, JJ., joined.

OPINION

RYAN, Circuit Judge.

We granted en banc review in this case, primarily to decide two questions about the warrantless search of the defendant's motor vehicle.

They are:

Whether, once two law enforcement officers' suspicion that defendant James Erwin, Jr. was driving while intoxicated proved to be unwarranted, they were required to permit him to depart without further questioning, even if they then had a reasonable and articulable suspicion of other criminal conduct.

If the answer is no, whether, in this case, the defendant's consent to search the vehicle was voluntary.

Our answers to these questions will, of necessity, determine the ultimate issue: whether the search of Erwin's vehicle was reasonable under the Fourth Amendment.

There is a second issue in this case, although it is not one for which we granted en banc consideration: whether the district court erred, to the defendant's unfair prejudice, in refusing to direct that the case be heard in the Southern Division, rather than the Northern Division, of the United States District Court for the Eastern District of Michigan.

I.

When we granted the government's petition for en banc review, we vacated the judgment of the panel of this court that held, in a divided opinion, that the district court erred in denying the defendant's motion to suppress the fruits of the search of his vehicle because, "[a]fter the traffic matter was concluded in the instant case, the defendant-appellant should have been released." United States v. Erwin, 71 F.3d 218, 222 (6th Cir.1995), vacated, 78 F.3d 232 (6th Cir.1996).

We now hold that the warrantless search of the defendant's vehicle was not unconstitutional under the Fourth Amendment because (1) the Constitution does not mandate that a driver, after being lawfully detained, must be released and sent on his way without further questioning once the law enforcement officer determines that the driver has not, in fact, engaged in the particular criminal conduct for which he was temporarily detained; and (2) the district court's determination--that the defendant's consent to search his vehicle was voluntary--is not clearly erroneous. We also hold that the district court did not err in refusing to order the intradistrict assignment requested by the defendant.

II.

In conducting the warrantless search that is the primary focus of this opinion, the arresting deputy sheriffs discovered one kilogram of cocaine in the defendant's car. Subsequently, the defendant entered a conditional guilty plea to an indictment charging him with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The plea was conditional because Erwin wished to preserve for review the district court's denial of his earlier motions to suppress the cocaine and to "correct an improper assignment" of his case to the Northern Division of the United States District Court for the Eastern District of Michigan.

III.

A.

Accepting, as we must unless clearly erroneous, the factual determinations made by the district court concerning the circumstances of the warrantless search and seizure, it appears that the following series of events occurred on July 31, 1992. At approximately 6:45 p.m., Livingston County Deputy Sheriffs Michael Lawry and Jeffrey Wagner, in separate patrol cars, received a general police broadcast regarding a drunk or reckless driver. The broadcaster provided a description of the vehicle, the license plate number, and a description of the driver. Deputy Wagner spotted a vehicle matching the description at the Oasis Truck Stop at the intersection of M-59 and U.S. 23 in Livingston County, Michigan.

The defendant, who matched the description of the driver, was standing between the vehicle and a set of phone booths. Deputy Wagner drove up to Erwin in a marked police vehicle and made eye contact with Erwin. According to Wagner, Erwin appeared nervous. As Wagner got out of his vehicle to approach Erwin, it appeared to the deputy that Erwin was attempting to get back into his car and "flee" the scene. Deputy Wagner advised Erwin to "stay there" and told him why he was stopped. As Wagner approached Erwin, Wagner noticed a cellular phone on the front seat of Erwin's vehicle and noticed that one of the cushions in the backseat was loose. According to Wagner, Erwin did not say very much, but appeared nervous; he took his hat off several times, rubbed his hand though his hair, and rubbed his hands together. Erwin was wearing a jogging suit, gym shoes, and a lot of jewelry.

Erwin complied with Wagner's request for Erwin's driver's license, but explained when asked for the car's registration and proof of insurance that the car was borrowed from a friend who had rented it. Wagner returned to his patrol car to run a standard-procedure LEIN check on Erwin. The dispatcher advised Wagner that Erwin had several prior convictions for drug and weapons offenses, and that Erwin had recently finished a term of parole. As the dispatcher was relaying this information, Deputy Lawry, who also heard the radio broadcast, arrived at the scene. Lawry asked Wagner if he had patted Erwin down. When Wagner answered that he had not, Lawry approached Erwin in order to do so.

Lawry testified that Erwin was extremely nervous. He noted that Erwin was sweating profusely, that his eyes were darting around, that he kept taking off his hat and running his hand through his hair, and that he kept reaching into his pocket. As Lawry approached the vehicle, he noted that the back cushion to the rear seat was ajar and positioned higher than normally it would be. Upon patting down Erwin, Lawry felt a square object in Erwin's pocket. Lawry retrieved from the pocket a pager, $846 in loose cash, and $135 worth of food stamps. Either immediately before, during, or immediately after the pat down, Lawry saw a black cloth case on the front passenger seat of Erwin's vehicle. Lawry testified that the case was open and that it contained a cellular phone, a small mirror, and what Lawry erroneously believed to be a cocaine spoon. In fact, the "spoon" turned out to be a blackhead remover used to treat acne.

Although the deputies were satisfied that Erwin was not under the influence of alcohol or drugs, they suspected by then that Erwin might be a drug distributor. The district court later summarized the bases for the deputies' suspicion, as established through their testimony at the suppression hearing:

The officers were entitled to conclude that they may have found a drug distributor, displaying his success and "wealth" in the form of ostentatious jewelry, who had received a page and parked his non-forfeitable rental car near a public pay phone to make a non-interceptable call, rather than broadcasting the details of his drug deal over the airwaves with the cellular phone on his car seat. Convicted of multiple serious offenses and recently released from parole, the very nervous man in the jogging suit was possessed of nearly a[sic] $1,000 in cash or readily-convertible food chits, any part of which could have been the proceeds of the day's drug sales.

Lawry then asked Erwin how much cash he had. Erwin responded that he did not know. Lawry, referring to the articles taken from Erwin's pockets and the objects observed on the front seat of the car, asked him to whom the narcotics paraphernalia belonged; Erwin answered that he did not know. Next, Lawry asked him whether he had anything in his car that he should not have such as weapons or drugs. Erwin answered that he did not. Lawry then said, "Well, then, you don't mind if I look around in the car then, do you, or would you?" Erwin said, "[N]o." Lawry deemed this response to be consent to search the car. Lawry did not inform Erwin that he was not obligated to consent to a search, nor did he give him a consent form to sign. Lawry later explained that he did not have a form with him. Lawry testified that, at the time he asked for permission to search, he did not have his gun drawn, he used a normal tone of voice with the defendant, and the defendant was still nervous but coherent and did not appear to be under the influence of alcohol or drugs.

A search of the vehicle uncovered one kilogram of powder cocaine packaged in a brick shape and wrapped with electrical tape. The package was retrieved from behind the loosened backseat cushion. After finding the package, Lawry instructed Wagner to place the defendant under arrest. Wagner arrested, cuffed, and placed Erwin in the patrol car.

After being indicted for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), Erwin filed a motion to suppress the evidence recovered at the Oasis Truck Stop. Relevant to this appeal, the district court heard testimony from Deputies Wagner and Lawry, credited their testimony that the defendant had given his consent voluntarily, found that Erwin "took a chance, gave a knowing consent, but lost the gamble," and denied the defendant's motion to suppress the kilogram of cocaine. Apparently, the defendant did not offer any testimony in his own behalf.

B.

When reviewing the denial of...